7.1 Consideration of measures based on the amended Act on Special Measures

Following an amendment to the Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response (Article 1-2 has been added to the Supplementary Provisions; hereinafter referred to as “amended Act on Special Measures”), COVID-19 is now classified as a pandemic influenza and new infectious disease. This chapter explains a number of measures related to this Act. In terms of legal requirements, the key points are in Article 4 of the amended Act on Special Measures (Responsibility of Business Operators and Citizens) (Table 16).

TABLE 16. Article 4 of the amended Act on Special Measures (Responsibility of Business Operators and Citizens) Business operators and citizens must strive to prevent pandemic influenza and new infectious diseases and cooperate by carrying out countermeasures against these diseases Business operators must consider the potential influence of the spread of pandemic influenza and new infectious diseases and strive to take appropriate measures in their business operations Registered business operators specified in Article 28, paragraph 1, item 1) must endeavor to continually provide medical care and services contributing to the stability of the lives of the citizenry and the national economy even in the event of pandemic influenza and new infectious diseases

As stated above, point 1 specifies the duty of business operators to strive to prevent infectious diseases such as COVID-19 and to cooperate by implementing infection prevention measures, and point 2 specifies their duty to take appropriate measures concerning their business operations by considering the potential impact of the spread of the disease. In other words, business operators are legally required by the amended Act on Special Measures to make efforts to close offices and adopt telework. Additionally, they are to examine and implement measures to balance their business continuity and safety considerations based on the amended Act on Special Measures.

The registered business operators described in point 3 refer to “business operators engaged in the provision of medical care or services contributing to the stability of the lives of the citizenry and national economy,” which includes healthcare professionals such as doctors, nurses and pharmacists; nursing care staff at nursing facilities; public health nurses; midwives; persons engaged in the sale of ethical pharmaceuticals; transportation workplaces; broadcast/newspaper workplaces; banking, water and sewer services; various retail workplaces such as drug stores; and cremation, grave management, and ceremonial occasion services (MHLW Notice No. 369, 2013, etc.). In accordance with the amended Act on Special Measures, registered business operators are required to continue their workplaces even during the current pandemic.

Furthermore, once a state of emergency is declared by the head of the Disaster Management Headquarters (the Prime Minister) (Article 32 of the amended Act on Special Measures), it will become possible, based on Article 45, for local governments to request the public to voluntarily refrain from going out (paragraph 1) and request or instruct (order) the public to restrict the use of schools and theaters, etc. and suspend or limit special events (paragraphs 2 and 3). Business operators should implement telework and consider/provide alternative services (changes in business structure) when unable to use facilities such as theaters.

Business operators need to recognize that business continuation will be significantly restricted by application of the amended Act on Special Measures. Even so, these business operators are still required to comply with general regulations for the safety of their employees, business partners, clients, etc. (safety obligations, Article 5 of the Labor Contracts Act and Article 415 of the Civil Code) and exercise reasonable care for business continuity (duty of care of directors and officers, Article 330 of the Companies Act and Article 644 of the Civil Code). Under the restrictions enforced by the amended Act on Special Measures, business operators who are quick to suspend their operations without giving careful consideration to the possibility of business continuation (through key operations, telework, web conferencing, outsourcing, alternative services [change of business structure], etc.) may receive a warning notice for violating “the duty of care.”

7.2 Specific measures taken by business operators based on the amended Act on Special Measures Therefore, business operators need to carefully develop their action plans from the following viewpoints: The need to avoid the risk of COVID-19 transmission in the workplace is forcing employers to consider temporarily suspending their business (voluntary restrictions on business activities, store closure, reduction of business hours, telework, etc.). Employers are also required to review the aspects of their business operations that need to be suspended, reduced, or continued by assigning ranks ranging from “immediate suspension” to “continuation” so that they can be prepared for any changes in situation. It is also important to give serious consideration to the implementation of "alternative services" that will allow employers to practically continue with their key operations. For example, possible alternative services may be retail sales, food delivery, and catering for restaurant workplaces, mail-order sales for retailers, and online classes and home tutoring for cram schools and preparatory schools. 2. Response to customers and what/how to provide information Employers will receive inquiries from customers about both safety measures and business continuity. Check with the public relations department and website administrator about whether the company's public relations system, including its website, is sufficient to properly respond to these inquiries. At the same time, it is also important to consider providing advance notice of possible business suspension (postponement) and continuing operations. 3. Response and explanation to employees, business partners, etc. In addition to considering the safety of employees and customers, it is also essential that employers strive to build cooperative relationships with employees engaged in key operations, labor unions, and vendors such as supply chains to better overcome challenges related to continuing the business. In doing so, employers should set up opportunities to explain the companies’ actions so that trusting relationships will be maintained. 4. Cooperation with an occupational health physician To fulfill their duty to consider the safety of employees, employers should seek professional support, such as by asking for medical advice and opinions from an occupational health physician. In particular, complaints of telework-related mental health problems should be handled in cooperation with an occupational health physician. It is necessary to promote information sharing with the company's occupational health physician and have the physician establish a cooperative framework for COVID-19 response plan in addition to normal occupational health activities. 5. Confirmation of internal controls across the company Through these efforts, employers should check internal communication (internal controls) regarding response measures for COVID-19 across the company, from management to employees (including the occupational health physician), and make modifications as needed. 6. Setting up COVID-19 countermeasures headquarters in the workplace (an example)

To make adequate decisions in response to shifting situations, it is desirable to set up COVID-19 countermeasures headquarters in the workplace to allocate decision-making authority. A framework should be established to enable those authorized to make decisions about business suspension, telework, short-time work, alternative services, etc. to confirm information with personnel at the countermeasures headquarters (such as personnel in charge of human resources management, risk management, public relations, and legal affairs, and the occupational health physician) via web conferencing, etc. to facilitate their decision-making process.

7.3 Examination of legal considerations of telework 7.3.1 Legal considerations of telework As a protective measure against COVID-19 disease, telework may be ordered (or approved) to prevent transmission while commuting and spread of the disease in the workplace. However, employees infected with COVID-19 may be at risk of worsening symptoms as a result of telework. When teleworking, it is difficult for the employer to sufficiently check on the employee's health condition, which raises concerns from a security obligation viewpoint. So, even if the infected employee claims to be able to work despite contracting the disease, the employee should not be ordered (or allowed) to work from home. 2 Overview of problems associated with telework First, it should be clear that labor-related laws such as the Labor Standards Act and employment rules also apply to telework. Therefore, it is necessary to ensure that the teleworking method complies with labor laws and that there are no discrepancies with employment rules. Next, since employees are geographically isolated from the workplace and supervisors, maintaining sufficient personnel management and information control can be a problem. The MHLW has published guidelines for the appropriate introduction and implementation of off-site work using information and communications technology (hereinafter referred to as "Teleworking Guidelines"), which should be taken into consideration when making telework arrangements. 3 Compliance with labor laws Management of working hours

When teleworking, it is difficult to determine the exact working hours due to geographical distance from supervisors and an inconspicuous distinction between work and private life. However, it is still necessary to manage the hours of work for employees who telework. The Teleworking Guidelines also state that employers are required to properly track the hours of work employees conduct from home based on the relevant guidelines. For example, employees’ computer usage needs to be monitored and properly recorded as an objective measure. Even when working hours need to be self-reported, an investigation should be conducted as needed to check whether the reported work hours are consistent with the actual hours worked. If they are not, corrections must be made.

Therefore, employers must be aware that a system needs to be put in place to manage the working hours of remote employees. Attention should also be paid to the handling of work interruptions and breaks when working from home. Such non-work time needs to be handled properly with reference to the Teleworking Guidelines and other resources. Since an employees’ home is located outside the workplace, a problem may arise as to whether the System of Deemed Working Hours Outside the Workplace can be applied. In this system, employees are considered to have worked for a statutory number of working hours, regardless of the hours actually worked. However, this system is considered applicable only if "it's difficult to calculate the number of hours worked."

Many companies probably provide their employees with company mobile phones or computers to access work systems to facilitate efficient teleworking. In such cases, the System of Deemed Working Hours Outside the Workplace is most likely not applicable. Since employers are also required to manage their employees’ working hours from a security (health) obligation viewpoint to prevent overwork, it is necessary to monitor the hours worked by employees in management positions and those subject to the discretionary labor system or the System of Deemed Working Hours Outside the Workplace. Regarding the prevention of overwork, it may be more difficult not to overwork when working from home. For remote employees, prohibiting overtime and holiday work altogether may be worth considering.

Without the direct involvement of supervisors and colleagues, the risk of information leakage is considered higher when working from home than working in the office. Therefore, when ordering (approving) telework for employees who work with confidential information, employers need to ensure that they have established information management policies, etc. to reduce the risk of information leakage.

7.3.2 Need for adjustments in employment rules, etc.

When ordering or approving telework for a temporary reason such as the COVID-19 pandemic, there is no need to revise company employment rules. Although in some companies, employment rules may specify the places of work, it is possible to order telework in accordance with rules pertaining to business trips or transfer orders.

However, telework incurs expenses normally not needed when working in the office (cost of equipment, telecommunication, utilities at home), but also eliminates the need for commuting. Handling of these necessary and unnecessary expenses needs to be considered. Therefore, it is advisable to establish telework policies, etc. as a supplement to employment rules to specify the details.